Aloisa Budisavljevie v Christou Property Trust T/A Just Falafs

[2018] FWC 957

[2018] FWC 957

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.365—General protections

Aloisa Budisavljevie
v
Christou Property Trust T/A Just Falafs
(C2017/6886)

COMMISSIONER PLATT ADELAIDE, 13 FEBRUARY 2018

Application to deal with contraventions involving dismissal – extension of time – application made within time.

[1] Ms Aloisa Budisavljevie has lodged an application pursuant to s.365 of the Fair Work Act 2009 (the Act) alleging that her employment was terminated by Christou Property T/A TJust Falafs (Just Falafs) via email dated 20 November 2017 received on 21 November 2017 in contravention of the general protections provisions of the Act.

[2] This application was lodged on 13 December 2017.

[3] Ms Budisavljevie’s application did not recognise that it was made beyond 21 days from the date of dismissal.

[4] Just Falafs filed a form F8A Employer Response on 7 February 2018 but did not raise any jurisdictional objection.

[5] The form F8 Employer Response advised that the correct name of the respondent is Christou Property Trust T/A Just Falafs. I have utilised the discretion in s.586 of the Act to amend the application accordingly.

[6] On 1 February 2018, the Commission corresponded with the parties and advised that the extension of time issue would be considered at a telephone conference on 13 February 2018. Information about the extension of time issue and the factors that I am required to take into account in considering this matter, were provided to the parties. Ms Budisavljevie and Just Falafs were directed to provide an outline of argument by 8 February 2018.

[7] Ms Budisavljevie provided a written submission which is summarised as follows:

•  She was notified via email dated 20 November 2017 that she had been dismissed.

•  She became aware of the email on the morning of 21 November 2017 after returning from the gym.

•  On 22 November 2017, Ms Budisavljevie contacted Unfair Dismissals Direct about taking action regarding her dismissal.

•  The form F8 application was filed within 21 days.

•  In relation to the merits, Ms Budisavljevie was dismissed for going home at her designated finishing time at the conclusion of an evening shift and for alleged performance and attitude concerns.

[8] Just Falafs provided a written submission which is summarised as follows:

•  Ms Budisavljevie was notified of the dismissal on 20 November 2017 via email, four unsuccessful attempts were also made to telephone Ms Budisavljevie between 17 and 20 November 2017.

•  Ms Budisavljevie was treated fairly in relation to the dismissal, she was generously provided with several opportunities to improve her behaviour and conduct recognising that Ms Budisavljevie had the capacity to be a highly capable employee.

•  In relation to the merits of the application:

•  On 5 November 2017, Ms Budisavljevie received a verbal warning for using inappropriate language in front of customers. After a customer had left Ms Budisavljevie stated “[the customer] didn’t have to be such a c*** about it”, referring to the customer’s dissatisfaction with missing items in their order.

•  On 11 November 2017, Ms Budisavljevie was working as part of a large event (70 guest wedding reception). She was working in an open kitchen that was visible to the guests. As a gesture of appreciation, all staff received a slice of wedding cake from the parents of the groom who had made the cake themselves. Ms Budisavljevie squashed the wedding cake in her hands and said “gross … eggs”. Mr Hansen directed Ms Budisavljevie to place the cake down to which Ms Budisavljevie responded by holding the cake out and laughing in front of the guests. Mr Hansen directed Ms Budisavljevie to remove herself to which she responded “f****** whatever”. This caused irreparable reputational damage resulting in an apology being provided to the hosts.

•  On 12 November 2017, Ms Budisavljevie was visibly angry during her shift and left at 7.45pm instead of the rostered time of 8.00pm.

•  A meeting was conducted with Ms Budisavljevie on 16 November 2017 to discuss her conduct and behaviour.

[9] A hearing was conducted by way of telephone conference on 13 February 2018. A sound file record of the telephone conference was kept. Mr Tim Rizzuto of Unfair Dismissals Direct represented Ms Budisavljevie and Mr Chris Hansen represented Just Falafs. Permission was sought pursuant to s.596(2) of the Act on the basis of efficiency, and was not opposed by Just Falafs. Permission was granted.

[10] Ms Budisavljevie position is summarised as follows:

•  She did not receive the email advising of her dismissal until 21 November 2017 and lodged her application within the required time frame.

•  Her application incorrectly identified the respondent as Tjust Falafs instead of Just Falafs.

[11] At the telephone conference, Just Falafs relied on the submissions filed and contended:

•  It sent an email advising Ms Budisavljevie of her dismissal at 9.41pm (AEDT) 20 November 2017 and the Commission should find that it was served on that day.

•  It did not have any evidence that Ms Budisavljevie had read the email prior to 21 November 2017.

•  If the Commission accepted that the dismissal took effect on 21 November 2017 it did not submit that the application was out of time.

[12] Section 366 of the Act relevantly states:

“Time for application

(1) An application under section 365 must be made:

(a)  within 21 days after the dismissal took effect; or

(b)  within such further period as the FWC allows under subsection (2).

[13] I find that Ms Budisavljevie became aware of the dismissal on the morning of 21 November 2017 and therefore this is the date the dismissal took effect. The Commission’s system notes that the application was received 13 December 2017 at 2.30am (ACDT), this accords with the application being received in the Perth Registry at midnight on 12 December 2017. With Perth being two and a half hours behind ACDT, the application was received in time and no extension of time is required.

[14] An Order¹ reflecting this decision will be issued, and the application will be referred for conciliation.

COMMISSIONER

Appearances (by telephone):

Mr T Rizzuto of Unfair Dismissals Direct on behalf of the Applicant.

Mr C Hansen on behalf of the Respondent.

Hearing (Conference) details:

2018.

Adelaide:

February 13.

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1 PR600388

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